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LOCKPORT – The prosecution is trying to get rid of the defense attorneys.

The defense is trying to get rid of the judge.

And Robie J. Drake remains in his cell in the Niagara County Jail, awaiting a third attempt to convince a jury he didn’t mean to kill two of his fellow North Tonawanda High School students in 1981.

Drake, now 48, was 17 when he killed Amy Smith, 16, and her boyfriend, Steven Rosenthal, 18, as they kissed in Rosenthal’s rusty 1969 Chevrolet Nova in a dark factory parking lot off River Road in North Tonawanda on the night of Dec. 5, 1981.

Drake testified that, armed with a rifle, he went out looking for abandoned cars to vandalize, and he didn’t realize the Nova was occupied until it was too late.

However, juries in 1982 and 2010 rejected that version of events, concluding that Drake was close enough to see the victims and convicting him of two counts of second-degree murder.

As the third trial, ordered by an appellate court, is awaited, Assistant Public Defenders Christopher A. Privateer and Joseph G. Frazier are trying to get State Supreme Court Justice Richard C. Kloch Sr. to recuse himself from the case, which he presided over in 2010.

They raised many objections to Kloch’s continuing to handle the case, ranging from negative statements he made about Drake’s conduct at sentencing in 2010 to Kloch’s past employment as North Tonawanda city attorney. Also, the defense notes, Kloch’s law clerk, Ronald J. Winter, was an assistant district attorney. However, he was hired after the first trial and left before the second trial, said Assistant District Attorney Thomas H. Brandt.

Brandt argued that nothing Kloch or Winter has ever said or done constitutes a reason for them to leave the case.

Brandt, who prosecuted Drake in the 2010 trial, said the Public Defender’s Office should be taken off the case because two prosecution witnesses were represented by public defenders in their own criminal cases more than 20 years after the killings.

This creates a conflict of interest for the whole public defender staff, he argues. The matter didn’t come up before because Drake had private attorneys in his previous trials.

All of these issues are scheduled to be argued in person before Kloch on May 23. No date for the third trial has been set.

Stunning deaths

The killings of the two teens in 1981 shocked the region.

Amy Smith was shot twice in the back of the head. Steven Rosenthal was shot 14 times and also was stabbed in the chest by Drake after the shooting.

Drake was arrested after driving the Nova to a nearby landfill, where police said they caught him trying to stuff Smith’s nude body into the trunk of the car.

Investigators noticed that every bullet Drake fired went through the passenger side window; not one struck a door or fender. And a forensic report concluded that the angle of impact of the bullets changed slightly during the attack, indicating Drake was walking toward the car as he fired.

The two juries that have heard the case had the option of convicting Drake of reckless manslaughter instead of murder, and they declined to do so.

A second-degree manslaughter conviction now would be a ticket home for Drake, who has long since served enough time to cover the 30-year maximum sentence for two counts of that crime.

After his 1982 conviction, Drake was sentenced by Niagara County Judge Aldo L. DiFlorio to 40 years to life. When that conviction was set aside by a federal court in 2009, Drake received a second trial, held in March 2010 before State Supreme Court Justice Richard C. Kloch Sr.

The result was the same as in 1982 except for the sentence. Kloch gave Drake 50 years to life in prison.

The first conviction was thrown out because of prosecutorial misconduct. Then-Niagara County District Attorney Peter L. Broderick Sr. used a bogus expert witness who exaggerated his credentials and sought to show Drake suffered from “picquerism,” a purported mental disorder that gives a person sexual pleasure from shooting or stabbing someone.

The U.S. Second Circuit Court of Appeals in New York City called that “quackery” and concluded that the purported expert committed perjury with Broderick’s knowledge.

The Appellate Division of State Supreme Court threw out Drake’s second conviction in April 2012 because of Kloch’s decision to allow the prosecution to introduce evidence of a bite mark on Smith’s breast, allegedly inflicted after her death. Drake was never charged with any sex crime, so the evidence was both irrelevant and prejudicial, the Rochester-based court found.

Another point raised by the Appellate Division pertained to a note from the jury, asking what would happen if they reached a verdict on one victim’s death but were divided regarding the other victim.

The appellate panel said that note never was shared with the attorneys, but its contents were known well enough that The Buffalo News reported them the next morning. However, a report of the note is absent from the stenographic record.

Brandt cited that article in his written argument to the court, submitted April 26. He also said that he and the defense attorney in the 2010 trial, Andrew C. LoTempio, were personally told by Kloch what was in the note.